' HASAN RDER HASAN FEROZ, J.---This order will dispose of Cr. Bail. Application No1614 of 2013 of applicant Farzan Khan moved under section 497, Cr.P.C. In F.I.R. No,389/2013 under section 23-A(i) of Sindh Arms Act, 2013 lodged at Police Station SIU.
2. The brief facts of the prosecution case are that S.I. Muhammad Rizwan Khan along with two official HC Muhammad Anwar and Ramzan Shah PC were patrolling and received spy information on mobile phone that one armed person was standing at Sher Shah Paracha bus stop. He along with police official reached there at about 0050 and found one person wearing paint shirt in suspicious condition and on pointation of spy he caught him and on his personal search one Pistol .30 bore along with four rounds recovered from right side of his paint on the rowel site of the handle the following was written BB-A 2785 for which he could not produce the licence.
3. Learned counsel for the applicant has contended that the applicant is innocent and has been falsely implicated by the police with ulterior move and mala fide intention. That as per the F.I.R., alleged offence had taken place about 0050 hours on 23-11-2013 whereas the F.I.R. Was lodged at 0220 hours on 23-11-20.13 and no explanation is given in the memo of F.I.R. That where the intervening time was spent by the police which creates doubt. That there is no mention of movement in station diary as to departure and arrival. The applicant is stated to be standing at tea hotel where the police came and roped him in this false case. That the mala fide is reflected as the I.O. Of this case also narrated about an F.I.R. Bearing No,386/2011, under sections 392/34, P.P.C.
Police Station North Nazimabad in the remand report produced before the Magistrate and alleged therein that the present applicant/accused is absconder in that case however, there is no name of present applicant/accused mentioned in the entire proceedings of that very. That the applicant/accused resides at Liaquatabad who has been falsely robed in the present case. The complainant namely S.I. Rizwan Khan has completely failed to comply with the provision under section 34 subsection (b) or Sindh Arms Act, 2013 as it was mandatory that if any person who was arrested with arms shall be delivered immediately to the office in-charge to nearest police station and that officer shall prosecute that person under this Act on behalf of State. All the witnesses are police officials and interested. That the prosecution has failed to mention the description of the weapon about its colour, style make and shape etc, which shows concocted story of the prosecution. The applicant accused is not a hardened, desperate or dangerous criminal and neither he is previously convicted in any offence and no other case is pending against him. That the challan has already been submitted before the trial Court and there is no likelihood of tampering with the prosecution evidence who are police personnel. That nothing has been recovered from the possession of the applicant/ accused and alleged recovery of pistol has been foisted upon him.
4. Learned A.P.-G. Has opposed this bail application on the grounds that section 23-A of Arms Act carries a punishment of 14 years and thus falling under prohibitory clause. The accused has been arrested along with pistol from an open place in presence of the Mushirs and the weapon has been testified by the Ballistic Expert's report.
5. I have in my consideration that the F.I.R./challan memo of recovery, memo of arrest and the contentions raised by learned counsel with regard to delay in lodging of F.I.R. The contention with regard to applicability of section 34 of Arms Act that on being arrested to be taken to nearest police station having jurisdiction can take cognizance has been repelled by the learned A.P.-G. On the ground that SIU police being declared as police station under section 4(s) has lodged the F.I.R.
At SIU Garden.
6. I have in my view that although section 23 of Sindh Arms Act carries a maximum punishment of 14 years however, at the same time the statute under 13-D Arms Ordinance, 1965 which provided punishment of maximum 7 and minimum 3 years still holds ground in corollary to Sindh Arms Act as urged by the learned counsel for the applicant.
7. The contention of the counsel for applicant that there are reasonable grounds to believe that the accused might not have committed the alleged offence and that doubt circumvent from the arrest and recovery at mid night from an open place as tea shop on the pointation of spy gets support from the memo of recovery wherein no sketch of the recovered arm has been made so also mention of another case Bearing F. I . R. No .386/2011 under section 392/34, P.P.C. Of Police Station North Nazimabad shown in the remand report by showing the accused as absconder weakens the prosecution version as nowhere finds place or name of accused in the aforestated case of Police Station North Nazimabad which gives room for further inquiry into the guilt of the applicant. I have in my view that there is also no mention of sealing of the articles at the spot and the two witnesses being police officials although cannot be discarded however, credence vis-a-vis doubt touches the bounds of further inquiry, therefore, to attract the essence of section 23-A which carries heavy punishment requires strict proof at this tentative stage of assessment of evidence so also the wrong mention of another case against accused of Police Station North. Nazimabad brings the case of applicant under heavy doubt in absence of any overt act leading to the use of weapon and thus bail can be extended to accused adhering to the dictum of superior courts as reported in 2013 YLR 110 wherein it has been held by his lordship Justice Muhammad Ali Mazhar of this court that even where the offence falls within prohibitory clause and the case of accused falls under further inquiry bail can be granted and that benefit of doubt can be given at bail stage. I, therefore, grant bail to the applicant in the sum of Rs,50,000 and P.R. Bond in the like amount to the satisfaction of Nazir of this court. The observations being of tentative nature will not effect the course of trial.